Slip Op. 24- 46

UNITED STATES COURT OF INTERN ATIONAL TRADE

Before: M. Miller Baker, Judge

OPINION

[In both cases, the court remands to Commerce for further proceedings.]

Dated: April 17, 2024 Court No. 22-00092

GREEN FARMS SEAFOOD JOINT STOCK COMPANY, Plaintiff

,

v. UNITED STATES, Defendant

, and

CATFISH FARMERS OF AMERICA and eight of its individual members, Defendant-I ntervenors. Court No. 22-00125

CATFISH FARMERS OF AMERICA and eight of its individual members, Plaintiffs

,

v. UNITED STATES, Defendant

, and

NAM VIET CORPORATION, NTSF SEAFOODS JOINT STOCK CO MPANY, and GREEN FARMS SEAFOOD JOINT STOCK COMPANY, Defendant-Intervenors.Ct. Nos. 22-00092, 22-00125 Page 2

Robert L. LaFrankie , Crowell & Moring LLP of Washington, DC, on the briefs for Green Farms Seafood Joint Stock Company.

Nazak Nikakhtar

, Maureen E. Thorson , and Stephanie M. Bell , Wiley Rein LLP of Washington, DC, on the briefs for Catfish Farmer s of America and its members.

Brian M. Boynton , Principal Deputy Assistant Attorney General; Patricia M. McCarthy , Director; Reginald T. Blades, Jr. , Assistant Director; and Kara M. Westercamp , Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice of Washington, DC, on the brief for the United States. Of counsel for the United States was Hendricks Valenzuela , Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce of Washington, DC.

Robert G. Gosselink and Jonathan M. Freed , Trade Pacific PLLC of Washington, DC , on the brief for NTSF Seafoods Joint Stock Company.

Matthew McConkey , Mayer Brown LLP of Washington, DC, on the brief fo r Nam Viet Corporation.

Baker , Judge: These overlapp ing cases arise out of the Department of Commerce’s 17th administrative review of its antidumping order on catfish imports from Vietnam. In Case 22-92, Green Farms Seafood Joint Stock Company

— a Vietnamese fish producerCt. Nos. 22-00092, 22-00125 Page 3

and exporter—argues that its ta riff is too high. In Case 22-125, Catfish Farmers of America and several of its constituent members contend that the tariff assigned to another exporter—and by extension to Green Farms—is too low. The gove rnment, caught in a crossfire in this late st skirmish in th e enduring Twenty Years’ Catfish War, assert s the Department reached the Goldilocks solution—just right. For the reasons explained below, the court send s both cases back to the agency’s drawing board.

I

In 2003, Commerce impose d an antidumping duty order on catfish from Vietnam. See Notice of Antidumping Duty Order: Certain Frozen Fish Fillets from the Socialist Republic of Vietnam , 68 Fed. Reg. 47,909 (Dep’t Commerce Aug. 12, 2003). Because Vietnam has a nonmarket economy, the order mandated specific tariffs on entities that demonstrated independence from the government and otherwise applied a single country-wide rate. See id. at 47,909–10. 1 The order has undergone many administrati ve reviews; the one here covered August 1, 2019, through July 31, 2020. See Initiation of Antidumping an d Countervailing Duty Administrative Reviews , 85 Fed. Reg. 63,081, 63,084–85 (Dep’t Commerce Oct. 6, 2020).

1 For the statutory and regulatory background, see Hung Vuong Corp. v. United States , 483 F. Supp. 3d 1321, 1334– 41 (CIT 2020) (addressing is sues from 14th review).Ct. Nos. 22-00092, 22-00125 Page 4

In that review, Commerce found that three companies demonstrated independ ence from the Vietnamese government and thus were el igible for separate rates:NTSF Seafoods Joint Stock Company, East Sea Seafoods Joint Stock Company, and Green Farms.Appx1037. All other producers received the countrywide rate of $2.39 per kilogram. Appx1094.

As mandatory responden ts, NTSF and East Sea were each individually in vestigated. Based on a comparison of the former’s reported data to costs of producing fish in India—the surrogate market-economy country chosen by Commerce over the objections of Catfish Farmers—the Department found that NTSF did not dump its catfish in the U.S. market and thus assigned the company a zero margin. Appx1093.

East Sea, on the other hand, ceased cooperating with the review after est ablishing its eligibility for a separate rate, prompting Co mmerce to apply facts otherwise available with an adverse inference. Id. That resulted in the agency a ssigning the company a margin of $3.87 per kilogram. Id

. Finally, because Green Farms was not individually investigated, the Departme nt determined that company’s rate by averaging NTSF’s and East Sea’s margins, even though Green Fa rms contended that the latter should be excluded from the calculation. Appx1069–1070. Th e consequence was that the agency assigned Green Farms a tari ff of $1.94 per kilogram. Appx1070.Ct. Nos. 22-00092, 22-00125 Page 5

II

Invoking jurisdiction conferred by 28 U.S.C. § 1581(c), Green Farms an d Catfish Farmers both sued under 19 U.S.C. §§ 1516a(a)(2)(A)(i)(I) and (a)(2)(B)(iii) to challenge Co mmerce’s final determination. Case 22-92, ECF 9 (c omplaint); Case 22-125, ECF 9 (complaint). Each then in tervened in the other case on the side of the govern ment. Case 22-92, ECF 16; Case 22-125, ECF 30. Na m Viet Corporation and NTSF also intervened in Ca tfish Farmers’ case to support the government. Case 22-125, ECF 20, 25.

After the court consolidated the cases for briefing, the plaintiffs moved for ju dgment on the agency record. Case 22-92, ECF 39; Case 22-125, ECF 49. The government opposed, Case 22-92, ECF 44; Case 22-125, ECF 54, as did the intervenors, Case 22-92, ECF 38; Case 22-125, ECF 51. The plaintiffs replied. Case 22-92, ECF 40; Case 22-125, ECF 50. The court decides the motions on the papers.

In § 1516a(a)(2) actions such as these, “[t]he court shall hold unlawful any determination, finding, or conclusion found . . . to be un supported by substantial evidence on the record, or ot herwise not in accordance with law.” 19 U.S.C. § 1516 a(b)(1)(B)(i). That is, the question is not whether th e court would have reached the same decision on the same record—rather, it is whether the administrative re cord as a whole permits Commerce’s conclusion.Ct. Nos. 22-00092, 22-00125 Page 6

Substantial evidence has been defined as more than a mere scintilla, as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. To determine if substantial evidence exists, we review the record as a whole, including evidence that supports as well as evidence that fairly detracts from the substantiality of the evidence.

Nippon Steel Corp. v. United States , 337 F.3d 1373, 1379 (Fed. Cir. 2003) (cleaned up).

In addition, the Department’ s exercise of discretion in § 1516a(a)(2) cases is su bject to the default standard of the Administrative Proced ure Act, which authorizes a reviewing court to “set as ide agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see SolarWorld Americas, Inc. v. Unite d States , 962 F.3d 1351, 1359 n.2 (Fed. Cir. 2020) (explainin g that in § 1516a cases brought under section 516A of the Tariff Act of 1930, APA “section 706 review app lies since no law provides otherwise”) (citing 28 U.S.C. § 2640(b)).

III

In Case 22-92, Green Fa rms raises two overarching issues. First, it challenges Commerce’s determinationCt. Nos. 22-00092, 22-00125 Page 7

that East Sea is eligible for a separate rate. 2 Second, it asserts that even if East Sea is so eligible, the latter’s adverse-inference tariff should not affect the calculation of Green Farms’s margin.

A

Green Farms maintains th at the Department’s grant of a separate rate to Ea st Sea is both contrary to law, ECF 39, at 15–32, and unsupported by sub2 Green Farms assumes that if Commerce denies East Seaa separate rate on remand, the Department will then calculate Green Farms’s margin us ing NTSF’s zero tariff, either alone or in conjunction with calculated separate rates in preceding administrative reviews. See ECF 39, at 51–52; ECF 40, at 29–31. Catfish Farm ers contest this assumption, arguing that in this scenario Commerce would assign the country-wide rate of $2.39 pe r kilogram to East Sea and use only that to calculate Green Farms’s tariff. See ECF 38, at 22–25. If that’s right, Green Farms would then be worse off, as its current margin is only $1.94/kilogram. Because the court reviews, not prophesies, agency action, cf

. Adarand Constructors, Inc. v. Mineta , 534 U.S. 103, 110 (2001) (“[T]his is a court of fi nal review and not first view . . . .”) (quoting Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 399 (1996) (Ginsburg, J., concurring in part and dissenting in part)), it need not consider this hypothetical question now. If on remand the Department finds East Sea ineligible for a separate rate, Commerce can address this dispute in the first instance, and any dissatisfied party can then seek relief here.Ct. Nos. 22-00092, 22-00125 Page 8

stantial evidence, id. at 33–39. The court considers those questions in turn.

1

Green Farms contends that Commerce has a “written policy” requiring separate -rate applicants to respond to “ ‘ all parts of the questionnaire as mandatory respondents’ to remain elig ible for separate rate status.” ECF 39, at 21 (empha sis in original) (quoting Appx7674). The company conten ds that “[t]he policy is clear. ‘All’ means ‘all.’ East Sea failed to answer ‘all’ parts of the questionnaire it received as a mandatoryrespondent. Therefore, under Commerce’s written policy, it can ‘no longer be el igible for separate rate status.’ ” Id. (quoting Appx7674).

The government responds that independence from government control is a se parate question from analysis of sales and cost data. ECF 44, at 49 (quoting Appx1061 and citing Nat’l Nail Corp. v. United States

, 279 F. Supp. 3d 1372, 1377 (CIT 2018)). The court agrees. “This Court has consist ently held that it is unreasonable for Commerce to impute the unreliabilityof a company’s questionnaire responses and submissions concerning its factors of production and/or U.S. sales to its separate-rate re sponses when there is no evidence on the reco rd indicating that the latter were false, incomplete, or otherwise deficient.” Yantai Xinke Steel Structure Co. v. United States , 36 CIT 1035, 1054 (2012), superseded by statute on other grounds, Trade Preferences Extension Act of 2015, Pub. L. No. 114-27,Ct. Nos. 22-00092, 22-00125 Page 9

§ 502, 129 Stat. 362 , 383–84 (2015), as recognized in Deosen Biochem. Ltd. v. United States , 307 F. Supp. 3d 1364, 1372 (CIT 2018).

Moreover, even if the De partment has the policy that Green Farms ascribes to it, an agency can deviate from its practices if it “sho w[s] that there are good reasons” for doing so. Huvis Corp. v. United States , 570 F.3d 1347, 1354 (Fed. Cir. 2009). As the governmentargues, “Commerce provided both notice and explanation for why it granted [Eas t Sea] a separate rate.” ECF 44, at 50 (citing Ap px1010–1011, Appx1060– 1064).

The Department reasoned that because the Vietnam-wide margin is lowe r than the adverse-inference tariff, denying East Sea a separate rate wouldbenefit the uncooperative company and allow respondents to manipulate the inve stigation. Appx1062. The agency noted that the Stat ement of Administrative Action (SAA) accompanying the Uruguay Round Agreements Act 3 allows for an adverse inference “to ensure that the party does not obta in a more favorable result by failing to cooperate than if it had cooperated fully.”

3 See H.R. Doc. No. 103–316, vol. 1 (1994), reprinted in 1994 U.S.C.C.A.N. 4040. Congress de clared the SAA “an authoritative expression by the Unit ed States concerning the interpretation and application of the Uruguay Round Agreements and this Act in any judicial proceeding in which aquestion arises concerning such interpretation or application.” 19 U.S.C. § 3512(d).Ct. Nos. 22-00092, 22-00125 Page 10

Id. (quoting SAA, H.R. Doc. 103–316, at 870). Complying with the SAA and prev enting respondents from benefiting from a lack of cooperation are valid reasons for a change in practice, if that’s what happened here. The court therefore reject s Green Farms’s argument that Commerce erred as a matter of law in granting East Sea a separate rate.

2

Green Farms also contends that substantial evidence does not support the Department’s finding that East Sea is eligible for a se parate rate. ECF 39, at 33– 39. The company advances three arguments.

First, Green Farms assert s that East Sea’s separate-rate certification was deficient and did not include sufficient informatio n to establish eligibility, and it also contends that it was improper in any event for East Sea to submit a “c ertification” instead of the longer-form “application.” 4 ECF 39, at 33–35. Thecourt need not address these points because Commerce did not rely on the ce rtification. Rather, the Department noted that East Sea had also submitted a response to Section A of the mandatory-respondent

4 The certification is a stream lined renewal form used by companies that recently received separate rates, while the application is for companies se eking such relief for the first time or that lost a separate rate previously received. SeeInitiation of Antidumping and Countervailing Duty Administrative Reviews , 85 Fed. Reg. 63,081, 63,082 & n.3 (Dep’t Commerce Oct. 6, 2020) (explaining process).Ct. Nos. 22-00092, 22-00125 Page 11

questionnaire that, taken to gether with the material submitted in the certificatio n, established eligibility. Appx1011; Appx1061; see also Appx1061 n.175 (noting Green Farms’s argument and stating that “it was unnecessary to require [East Sea] to remedy this deficiency because Commerce so licited extensive, similar information in its Sect ion A questionnaire”).

Second, the company maintains that the Department disregarded Catfish Farmers ’ comments about alleged deficiencies in East Sea’s certification. ECF 39, at 33–35. Catfish Farmers themselves make no such argument, instead urging th e court to sustain East Sea’s separate rate. Th e government, meanwhile, notes that Catfish Farmer s submitted th e comments in question before Comme rce issued its preliminary determination. ECF 44, at 53.

The final determination, in turn, makes clear that Catfish Farmers proffered no objection to the Department’s preliminary conclusi ons. Appx1059–1060. Inother words, Catfish Farmers abandoned their arguments. After the agency issu es its preliminary determination, the parties have 50 days to file case briefs that “must present all argume nts that continue in the submitter’s view to be rele vant to the Secretary’s determination or final result s, including any arguments presented before the date ofpublication of the preliminary determination or prel iminary results.” 19 C.F.R. § 351.309(c)(2). “Both Commerce and reviewing courts normally find an argument not presented in a party’sCt. Nos. 22-00092, 22-00125 Page 12

case brief to be waived un less the argument could not have been raised in the case brief.” NTSF Seafoods Joint Stock Co. v. United States , Ct. Nos. 20-00104, 20- 00105, Slip Op. 22-38, at 24 , 2022 WL 1375140, at *8 (CIT Apr. 25, 2022).

Because Catfish Farmers elected not to include their pre-preliminary argume nts in their case brief, Green Farms needed to assert them. It failed to do so; instead, it now complains that “Commerce does not even mention CFA’s deficie ncy comments, much less consider them.” ECF 39, at 35. But that is what ordinarily happens when a part y abandons its arguments: The Department reasonably chose not to address Catfish Farmers’ forsaken co mments when Green Farms declined to adopt them as its own.

Finally, Green Farms cont ends that Commerce didnot “adequately explain[ ] its decision, or how the evidence supports its findings under each of the factors relevant to determining the absence of both ‘ de jure ’ and ‘ de facto ’ control.” Id. at 37. The court agrees.

In its preliminary determ ination, the Departmentsimply said that East Sea’s evidence “supports a preliminary finding that [it] is eligible for a separate rate” and that it “provided an adequate resp onse to Commerce’s questionnaire as it related to the company’s independence from the Vietnamese Government and separate rate eligibility.” Appx1011. The agency further identified the relevant factors it considers in examining de jure and de facto independence, but inCt. Nos. 22-00092, 22-00125 Page 13

finding those factors satisfie d it merely repeated the factors themselves and gave blanket citations to the company’s separate-rate certification. Appx1010–1011 & nn.63, 66. 5 Merely reciting the legal standard, without analysis, is not su bstantial evidence. Ninestar Corp. v. United States , Ct. No. 23-00182, Slip Op. 24- 24, at 28, 2024 WL 864369, at *13 (CIT Feb. 27, 2024) (citing Dickson v. Sec’y of Def. , 68 F.3d 1396, 1405 (D.C. Cir. 1995) (“When an agency merely parrots the language of a statute withou t providing an account of how it reached its results, it has not adequately explained the basis for its decision.”)).

The final determination, in turn, simply listed the broad categories of informat ion East Sea provided and then concluded, “We found no basis to determine that the separate-rate informat ion submitted was not reliable.” Appx1061. Later, Commerce repeated that East Sea “did provide sufficient information necessary to determine its independence from the Government of Vietnam.” Appx1063. The final determination contained no analysis of its ow n—rather, it said that the Department “continue[d] to fi nd” that East Sea had established a right to a sepa rate rate. Appx1060. But Commerce’s preliminary d iscussion was conclusory.

In layman’s terms, the Department didn’t show its work, and the requirement th at it do so is “a ‘basic

5 The referenced footnotes merely cite “NTSF SRC; ESS SRC; and Green Farms SRA.” Neither refers to specific pages or material.Ct. Nos. 22-00092, 22-00125 Page 14

principle’ in administrative law that is ‘indispensable to sound judicial review.’ ” Ninestar , Slip Op. 24-24, at 28, 2024 WL 864369, at *13 (quoting Amerijet Int’l, Inc. v. Pistole , 743 F.3d 1343, 1350 (D.C. Cir. 2014)). The court therefore remands to provide Commerce with the opportunity to “offer a fuller explanation of the agency’s reasoning at th e time of the agency action.” Dep’t of Homeland Sec. v. Regents of Univ. of Cal. , 140 S. Ct. 1891, 1907 (2020) (cleaned up).

B

Green Farms alternatively asserts that even if Commerce properly granted East Sea a separate rate, the Department nonetheless e rred by using it to calculate Green Farms’s tariff. ECF 39, at 39–53. The company contends that East Se a’s adverse-inference rate is not reasonably reflective of economic reality or Green Farms’s potentia l dumping margins. Id. at 39– 43.

Commerce observed that the statute instructs the agency to ordinarily disregard any rates that are zero, de minimis , or based entirely on facts available when setting a separate rate for companies not individually examined, such as Green Farms. Appx1011 (citing 19 U.S.C. § 1673d(c)(5)(A)). 6 Here, however, the tariffs for

6 Neither the Tariff Act nor Commerce’s regulations address how the Department should establish the separate rate for companies not individu ally examined in an antidumping investigation or administrative review of importsCt. Nos. 22-00092, 22-00125 Page 15

the only companies indivi dually examined—NTSF’s zero margin and East Sea’ s adverse-inference rate— fell within those “disregar d” categories. Appx1011. The Department noted that in such situations, it “may use ‘any reasonable method’ for assigning the rate to all other respondents, incl uding ‘averaging the estimated weighted average dumping margins determined for the exporters and producers individually investigated.’ ” Id. (quoting 19 U.S.C. § 1673d(c)(5)(B)). Commerce therefore prelim inarily calculated Green Farms’s rate by taking the simple average 7 of NTSF’s and East Sea’s margins. Id.

Green Farms argued that the Department shoulddisregard East Sea’s margin in that calculation because the agency’s “normal practice” is to exclude adverse-inference rates. Appx1067. Instead, Green Farms urged Commerce to simply assign it NTSF’s zero margin. Id. The company also contended that the inclusion of an adverse- inference rate meant the

from a nonmarket-economy country. In such cases, agency practice is to use the statut ory method for determining an “all-others” rate in market-economy cases. See Am. Mfrs. of Multilayered Wood Flooring v. United States , Ct. No. 21- 00595, Slip Op. 24-13, at 4 n. 3, 2024 WL 489474, at *1 n.3 (CIT Feb. 8, 2024).

7 Commerce explained that it used a simple average, ratherthan the weighted average specified in the statute, “because publicly ranged shipment data were not available for” East Sea. Appx1069 n.222. No party challenges that aspect of the decision.Ct. Nos. 22-00092, 22-00125 Page 16

calculated margin did not “reasonably reflect” its economic reality. Id.

The Department found it s methodology consistent with the statutory comman d and noted that the SAA states that “the expected method” when all individually examined responden ts receive dumping margins that are zero, de minimis , or based entirely on facts available “will be to weight average the zero and de minimis margins and margins determined pursuant to facts available , provided that volume data is available.” Appx1069 (emphasis in original). Commerce noted that the statute perm its the use of other “reasonable methods” if the “exp ected method is not feasible,” but it found the “expected method”—as modified to use a simple average—feasible here. Id. The Department observed that Green Fa rms cited no evidence to show otherwise and further found that relying solely on NTSF’s rate would contra dict the statutory instruction to use both mandator y respondents’ margins. Id.

Finally, Commerce explained that the margin it assigned—$1.94/kg—“is far more similar to Green Farms’ cash deposit rate du ring the [period of review] ( i.e. , $1.37 per kg) than any of the rates proposed by Green Farms,” so the Depa rtment found “no basis to conclude that the rate calc ulated in accordance with [§ 1673d(c)(5)(B)] is not appropriate.” Appx1070.

The government and Catfis h Farmers convincingly argue that Commerce correctly followed the statutory command and the SAA by averaging NTSF’s zero rateCt. Nos. 22-00092, 22-00125 Page 17

and East Sea’s adverse-inferen ce tariff. But that’s not the end of the matter. Although the statute and the SAA permit Commerce to “use a simple average methodology to calculate the separate rate,” Yangzhou Bestpak Gifts & Crafts Co. v. United States , 716 F.3d 1370, 1378 (Fed. Cir. 2013), “ ‘it is possible for the application of a particular me thodology to be unreasonable in a given case,’ ” id . (quoting Thai Pineapple Canning Indus. Corp. v. United States , 273 F.3d 1077, 1085 (Fed. Cir. 2001)). “ ‘Form should be disregarded for substance and the emphasis should be on economic reality.’ ” Id . (brackets omitted) (quoting United States v. Eurodif S.A. , 555 U.S. 305, 31 7–18 (2009)).

Green Farms argues, among other things, that Bestpak is “particularly instru ctive.” ECF 40, at 25. The court agrees. In that ca se, there were likewise two mandatory respondents, only one of which cooperated. 716 F.3d at 1374. Al so as here, Comm erce calculated the margin for a non-invest igated separate rate company, Bestpak, by averagin g the cooperating respondent’s zero margin with the non-cooperating respondent’s adverse-inference tariff. Id . at 1375. The Federal Circuit remanded because th e record contained no information tying this rate to “Bestpak’s commercial activity.” Id . at 1380. Assigning Bestpak half of the adverse-inference rate “with no other information [was] unjustifiably high and may amount to being punitive, which is not permitted by the statute.” Id . at 1379.Ct. Nos. 22-00092, 22-00125 Page 18

Here, the Department’s only record-based justification for assigning Green Farms a margin of $1.94/kg— half the adverse-inference ra te—is its similarity to the company’s cash deposit tariffduring the period of review. See Appx1070. But as Gree n Farms argues, its cash deposit rate “is irrele vant,” ECF 40, at 33, because “[t]he very point of th e . . . review process (and separate rate application) is to afford [the company] the opportunity to update th is cash deposit rate with newer and updated data . . . . Otherwise there would be no point in participa ting in [the] review.” Id . The court agrees that Commerce’s use of the cash deposit rate to justify Green Farms’ s margin is “wholly circular and arbitrary.” Id . As in Bestpak , “a review of the administrative record reveals a lack of substantial evidence showing that” Gree n Farms’s tariff “reflects economic reality.” 716 F.3d at 1378.

* * *

The court grants Green Farms’s motion for judgment on the agency reco rd. On remand, Commerce must reconsider East Sea’ s eligibility for a separate rate. Insofar as the Depart ment reaffirms that determination, it must then reconsider th e calculation of Green Farms’s margin.

IV

In Case 22-125, Catfish Farmers challenge Commerce’s use of India, rather than Indonesia, as the primary surrogate country to calculate NTSF’s rate, andCt. Nos. 22-00092, 22-00125 Page 19

seek that margin’s recalcul ation; they relatedly ask the court to remand Green Farms’s margin for reconsideration because it was based in part on NTSF’s tariff. See ECF 49, at 10–36. 8

Catfish Farmers observe that a case from the 16th administrative review involv es “a substantively identical challenge to the agen cy’s economic comparability analysis.” ECF 49, at 17. Th ey are correct. Commerce’s discussion of India versus Indonesia here repeats its analysis in that case 9 and another involving the 15th review, 10 and it is deficient for the same reason as in those cases—the Department ’s misapplication of the statutory standard.

Despite having invited in terested parties “to propose for consideration other countries [not on its ‘surrogate country list’] that are at a level of economic development comparable to Vietnam,” Appx7798

8 Catfish Farmers’ complaint asserts certain other claims in Counts I, II, III, and V, bu t their motion fails to address them. The government invokes waiver, see ECF 54, at 3 n.2, which Catfish Farmers do not dispute. The court therefore sustains the aspects of Commerce’s decision challenged in those counts.

9 See Catfish Farmers of Am. v. United States , Ct. No. 21- 00380, Slip Op. 23-97, 2023 WL 4560815 (CIT July 7, 2023).

10 See Catfish Farmers of Am. v. United States , Ct. No. 20-00105, Slip Op. 24-23, 2024 WL 775181 (CIT Feb. 26, 2024).Ct. Nos. 22-00092, 22-00125 Page 20

(emphasis added), Commerce as serted that it need not consider whether the Indonesi an data are superior because “Indonesia is not at the same level of economic development as Vietnam,” Appx1077 (emphasis added). But the Department never considered whether Indonesia is at a comparable level , as Catfish Farmers contend. That omission inva lidates the analysis because, as the court has ex plained, Commerce may not ignore Catfish Farmers’ evidence and argument. See NTSF , Slip Op. 22-38, at 39–40, 2022 WL 1375140, at *13 (explaining that the find ing that India is economically comparable to Vietnam “is irrelevant to whether, as Catfish Farmer s argued before the Department, Indonesia is also economically comparable”) (emphasis in original).

As the court has now twic e before explained, the Department’s discretion does not permit it to disregard the statutory “compara ble level of economic development” standard. See Slip Op. 23-97, at 16–18, 2023 WL 4560815, at *6; Slip Op. 24-23, at 5–6, 2024 WL 775181, at *2 (noting th at because the statute requires the use of “comparable” countries, “[a] more demanding rule that excludes [them] is therefore not in accordance with law”); see also 19 U.S.C. § 1677b(c)(4)(A) (requiring th e use of price or cost data from “one or more market economy countries that are . . . at a level of economic development comparable to that of the nonmarket ec onomy country”) (emphasis added). Because Catfish Farm ers argue that Indonesia is economically comparable to Vietnam, on remandCt. Nos. 22-00092, 22-00125 Page 21

Commerce must either explain why it disagrees 11 or else compare the two countr ies’ data to assess which set is superior. Inso far as NTSF’s and (by extension) Green Farms’s rates are ba sed on Indian data, Commerce must recalculate them if it selects a different primary surrogate country. 12

* * *

The court grants Catfish Farmers’ motion for judgment on the agency record and remands for Commerce to examine whether Indonesia is at a level of economic development comparable to Vi etnam and, if so, to analyze whether India or Indonesia offers superior surrogate data. The court also directs the Department to

11 The government argues, “Commerce reasonably determined that the record of this review did not demonstratethat Indonesia was at a level of economic development comparable to Vietnam, regardless of surrogate country decisions in past segments of this order.” ECF 54, at 30. That statement mischaracterizes what the Department did. Commerce made no finding about Indonesia’s economic comparability to Vietnam—instead, the agency simply claimed that because the former country is not on the “surrogate country list,” it is not at the same level, without reference to whether it might still be comparable. Appx1077; cf. Slip Op. 24-23, at 5, 2024 WL 775181, at *2 (noting that “comparable” is “broader” than “same” because “it includes the merely similar as well as the identical”).

12 While Catfish Farmers raise ot her challenges to specificaspects of the Indian data Commerce used, it is unnecessary to address them in view of the court’s direction that the Department reconsider its surrogate country selection.Ct. Nos. 22-00092, 22-00125 Page 22

reconsider NTSF’s tariff beca use it is based on Indian data. If that reconsideration results in a ch ange to that company’s margin, Commerce must then reconsider Green Farms’s rate.

Dated: April 17, 2024 /s/ M. Miller Baker New York, NY M. Miller Baker, Judge